In an interview with Robert Siegel for an All Tech Considered segment March 16, Wheeler said all the FCC was doing was giving consumers control of information that was theirs—like what websites they had surfed—not the ISPs.

The FCC assumed primary regulatory authority over broadband customer CPNI (customary proprietary network information) from the Federal Trade Commission when it reclassified ISPs as Title II telecoms. The FCC already had oversight of traditional video service CPNI—like what VOD fare a customer was accessing.

Wheeler earlier this month proposed new rules for broadband CPNI, most notably that consumers would have to opt in on any data sharing and collecting beyond that used to market telecom services by the ISP—say, to get a broadband customer to add voice, which would be an opt out regime.

In the interview, Wheeler said just collecting the information didn't need opt in, but if it was being shared, that would need affirmative permission by the customer.

ISPs had asked the FCC not to come out with new rules, but instead to take an approach "consistent with the successful FTC approach, which is grounded on prohibiting unfairness and deception." The FTC is generally limited to taking action against violations of privacy policies and has limited rulemaking authority. The ISPs told the FCC that approach, rather than the FCC exercising its more muscular rulemaking authority in a changing and innovating space, was the better approach.

Siegel appeared to believe ISPs had instead asked the FCC not take any action and let the FTC handle it.

"Internet Service Providers say that the Federal Trade Commission, the FTC, not the Federal Communications Commission, has a balanced set of regulations that address privacy and also the companies' interest in new Internet business models. What's the problem in saying: "Hey, 'we're already regulated by this other commission.'"

"Because they aren't regulated by the FTC," Wheeler answered. "The FTC's statute specifically precludes the FTC from regulating Common Carriers, and in our Open Internet order, these Internet Service Providers were made to be common carriers. So the FTC has no jurisdiction."

Siegel asked whether Wheeler was adding fuel to the fire by proposing new regs while the Open Internet order was being challenged in court and not "fully settled." He said he expected the court to rule within the next few weeks and was "confident of our authority in this area."

Wheeler conceded that opting out of data collection might raise the cost of service, but said the FCC was empowering consumers to say how their information was used, then "empowering them to say 'is there some value on my information' and work some kind of a deal with an Internet Service Provider to put a value on that information."